[ad_1]
Patna High Court
Pappu Tanti @ Puplesh Kumar vs State Of Bihar on 16 July, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.756 of 2008
======================================================
Pappu Tanti @ Puplesh Kumar, Son of Chandra Tanti @ Chamak Lal Tanti.
Resident of Village- Pakki Sarai, Police Station- Kahalgaon (Ghogha),
District- Bhagalpur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Dhanendra Chaubey, Advocate
For the State : Mr. A. M. P. Mehta, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV JUDGMENT
Date: 16.07.2025
Heard Mr. Dhanendra Chaubey, learned counsel
for the appellant and Mr. A. M. P. Mehta, learned APP for the
State.
2. This appeal has been filed under Section
374(2) of the Code of Criminal Procedure Code, 1973
(hereinafter refereed as 'Cr.PC') against the judgment and order
of conviction dated 14.07.2008 and 18.07.2008 respectively
passed by the learned Sessions Judge, Bhagalpur in Sessions
Trial No. 742 of 1999, G.R. Case No. 243 of 1999 arising out of
Kahalgaon (Ghogha) P.S. Case No. 34 of 1999 whereby and
where under the appellant has been convicted for the offences
punishable under Section 366(A) and 376 of the Indian Penal
Code (hereinafter refereed as 'IPC') and sentencing him to
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
2/27
undergo rigorous imprisonment for seven years and a fine of Rs.
5,000/- and in default of payment of fine one year sentence the
appellant would serve and rigorous imprisonment for ten years
and a fine of Rs. 5,000/- and in default one year more
imprisonment would serve by the appellant and both the
sentences shall run currently.
3. The case of prosecution in brief is that on
06.02.1999
at about 8.00 AM. the informant’s niece namely
Poonam Kumari aged about 15 years went to school to take
Admit Card for the Matriculation Examination. When she did
not returned till 1.00 PM. her mother informed the informant.
The informant along with his Bhabhi went to school to search
her, but the school was closed. When they came in the market at
the shop of Pappu Tanti, where his brother Anand Tanti was
present at the shop who told Pappu has gone to Bhagalpur for
purchasing cosmetic goods for the shop. It was apprehended that
Pappu Tanti had kidnapped Poonam Kumari for the purpose of
marriage.
4. Further on the basis of the fardbeyan of the
informant, Kahalgaon (Ghogha) P.S. Case No. 34 of 1999 was
lodged against accused/appellant for the offence punishable
under Sections 366 (A) and 376 of the IPC. The Investigating
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
3/27
Officer recorded the statement of the injured after finding the
occurrence to be true, he submitted charge-sheet against
accused/appellant Pappu Tanti vide charge-sheet no. 160 of
1999 dated 30.06.1999 under Sections 366 (A) and 376 of the
IPC. Thereafter the cognizance was taken by the learned Chief
Judicial Magistrate, Bhagalpur and case was committed to the
Court of Sessions on 30.11.1999.
5. On behalf of the prosecution, altogether 7
witness were examined to substantiate the charges leveled
against the accused/appellant Pappu Tanti. Out of them, PW-1
Savitri Devi, PW-2 Rajendra Mandal, PW-3 Gayatri Devi
(mother of victim), PW-4 Kamleshwari Pd. Das (informant),
PW-5 Dr. Smt. Krishna Sinha, PW-6 Poonam Kumari (victim),
PW-7 Ganesh Mandal. On behalf of the defence two defence
witnesses were examined, they are DW-1 Kamleshwari Mandal,
and DW-2 Ramu Mandal
6. PW-1 in her examination-in-chief stated that
upon hearing commotion (hulla), she went to the house of
Poonam’s mother. Upon inquiry, Poonam’s mother informed her
that the girl (Poonam) had not returned home. She further stated
that people in the locality were discussing that Pappu Tanti had
allegedly eloped with Poonam. However, she categorically
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
4/27
stated that she does not recognize Pappu Tanti. In her cross-
examination, she stated that the occurrence took place at around
2:00 to 2:30 PM and approximately 8 to 10 people were present
at the house of Poonam’s mother at that time. Further, she stated
that she had gone to Poonam’s house with her husband. She
stated that she is unable to recall the exact month of the
occurrence but stated that the day was a Sunday.
7. PW-2 in his examination-in-chief stated that
the occurrence took place on 06.02.1999 at about 8:00 AM. He
stated that Poonam Kumari had gone to school in the morning
but did not return home. At around 2:00 PM, a commotion
(“hulla”) broke out in the village, and it was being said that
Pappu Tanti had eloped with Poonam Kumari. He further stated
that he went to the police station along with Poonam’s mother,
where Kamleshwari Das, who is the paternal uncle of Poonam
Kumari, lodged the case. He stated that he does not recognize
the accused, Pappu Tanti.
7.i. In his cross-examination, he stated that the
hulla occurred at about 2:00 PM, though he could not name the
persons who raised it. He stated that his house is situated two
houses to the west of Poonam’s house, and that there are other
houses located to its rear, east, and west. He further stated that
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
5/27
they reached the police station at around 9:45 PM, where police
recorded the statements of Poonam’s mother, his wife (Savitri
Devi), and himself. He further stated that he had not gone to the
police station that day or that his statement was not recorded. He
further stated that on the date of occurrence, he had seen
Poonam going to school alone in the morning. However, he was
not aware whether the school was open or closed that day.
8. PW-3 in her examination-in-chief stated that
on 06.02.1999 her daughter Poonam Kumari had gone to school
at about 8:00 AM to collect her admit card but did not return
home until 2:00 PM. Thereafter, her brother-in-law went to the
school to search for Poonam but did not find her there. Upon
returning, Kamleshwari Das informed her that he had heard
commotion (“hulla”) at the village chowk that Pappu Tanti had
eloped with Poonam Kumari. She along with Kamleshwari Das
then went to the house of Pappu Tanti to look for Poonam, but
no one was found at the premises. Subsequently, Kamleshwari
Das lodged a case at the police station. She further stated that
her statement was recorded by the police the same night at about
10:00 PM. She further stated that after about one month, her
daughter Poonam was found at Jagdishpur in the company of
the accused Pappu Tanti. Both of them were then taken to the
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
6/27
police station.
8.i. In her cross-examination, she stated that she
is educated up to class VII and Poonam had informed her before
going to school on the day of the occurrence and that Poonam
used to go and return from school alone. On that day, she herself
did not go out to search for Poonam. She also stated that her
husband resides in Bettiah. She denied the suggestion that there
was a hartal (strike) at the school that day and stated that admit
cards were indeed being distributed. She further stated that she
does not know who informed Kamleshwari Das about Pappu
Tanti’s alleged involvement in the elopement. She denied that
Poonam was previously acquainted with Pappu Tanti. However,
she stated that Poonam used to visit the shop of Pappu Tanti
along with Kamleshwari Das. She had no knowledge regarding
any exchange of love letters between Pappu Tanti and Poonam
and denied the suggestion that she was concealing such facts
deliberately. She further affirmed that she had signed the
statement recorded by the police and stated that she had made
the statement that she had gone to the house of Pappu Tanti in
search of her daughter.
9. PW-4 in his examination-in-chief stated that
on 06.02.1999 at about 8 am, his niece Poonam Kumari, aged
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
7/27
15 years had gone to school to collect her admit card and when
she did not return by 2 pm, his sister-in-law, Gayatri, instructed
him to search for her. He first went to Sant High School, which
was closed, and then searched in the local vicinity. At Ghogha
Bazar, he was informed that Pappu Tanti was seen going
towards Bhagalpur with Poonam Kumari. He further stated that
he visited Pappu Tanti’s shop and found his brother Anand Tanti,
who said that Pappu had gone to Bhagalpur to bring some
cosmatic articles for her shop. Upon visiting Pappu’s house, he
did not find him there. At 9 pm on the same day, he lodged the
FIR at the police station, which he signed after the Sub-
Inspector recorded his statement (Exhibit 1).
9.i. He further stated that after about 20 to 25
days, Poonam Kumari was recovered by the police from the
house of Pappu Tanti’s sister in Jagdishpur. He further stated
that when Poonam found school to be closed and on way to
return she was forcibly taken by Pappu Tanti and others in a
jeep, where she was administered some substance and her
mouth was tied. Poonam further told him that Pappu Tanti had
committed rape upon her and made her sign on a blank paper.
She was taken to Jagdishpur, where she was again administered
tablets and repeatedly raped.
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
8/27
9.ii. In his cross-examination, he stated that he
runs a tailor shop from 7-8 am to 9 pm, located about 1.5 miles
from his house, and that the police station is about 14 miles
away. The search for Poonam involved several villagers and
lasted from 2 pm to 9 pm on that day. He last saw Poonam
before 8 am when she left for school. He admitted that he did
not accompany the police to Jagdishpur when Poonam was
recovered and did not recall the exact date of her recovery. He
also stated that he was present when Poonam narrated her ordeal
but had not disclosed this information prior to the present
testimony.
10. PW-5 in her examination-in-chief stated that
on 04.03.1999 she was posted at J.L.N.M.C.M, Bhagalpur as
R.S.O and that day she examined Poonam Kumari, daughter of
Sambhu Prasad Das of village- Amapur, P.S. Kahalgaon District
Bhagalpur and found following:-
“There was no evidence of external injury all
over the body or examination of private part
No injury on vulva or paremiom was found,
pubic hair was present. There was no matting
staining and no foreign hair was found. There
was old tear on hymen. Introituis admitted two
fingers. Uterus was anti verted, small and mobis.
Vaginal swab was taken and sent for
pathological examination for determination of
presence of spermatozoa. Urin was sent in
sealed vial for determination of HCG (whether
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
9/27pregnant or not). Victim was sent to radiologist
for determination of age by X-ray of pelvis and
wrist.”
10.i. She further stated that she receives both
reports and reports indicated that spermatozoa was not found
and existence of pregnancy could not be determined in absence
of pregnancy detention kit. After radio-logical test vide X-ray
No. 385 the age of the victim was determined below 18 years.
There was no positive finding of rape and it was difficult to
ascertain whether rape was committed or not. Hymen was torn
and tear was old in nature, suggestive of sexual intercourse in
the past. The medical report is in her pen and bear her signature,
marked Exhibit-2.
10.ii. In her cross-examination, she stated that
injury registered is maintained in her office. Preliminary injury
was recorded on bed-head ticket dated 04.03.1999. After receipt
of the pathological and x-ray report she incorporated everything
in injury register. She have not maintained the date of receipt of
pathological and x-ray report she have mention the date of
receipt of reports in the injury registered. X-ray plate is not
available before her today.
11. PW-6 in her examination-in-chief stated that
her parental home is situated in village Amapur, P.S. Kahalgaon,
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
10/27
District Bhagalpur. Her father’s name is Sadhu Prasad. On
06.02.1999 at about 9:00 AM, she was returning to her house
from Sant High School, Ghogha. When she reached near an
orchard, she noticed a jeep stationed there. Two or three persons
forcibly took her into the jeep and brought her to Bhagalpur
Railway Station. She was administered a tablet that rendered her
unconscious and was subsequently taken by train to Danapur.
She was kept confined in a room for four days, during which
she was raped under threats and intimidation. She specifically
identified the accused, Pappu Tanti, as one of the persons
involved, and recognized him in Court. She further stated that
although she repeatedly pleaded with her captors to allow her to
return home, they threatened her. After four days in Danapur,
she was taken to Bhagalpur, once again under the effect of a
sedative. Her signature was forcibly taken on blank papers, and
she was taken to Bhagalpur Court, where her statement was
recorded. Thereafter, the accused took her to Jagdishpur and
kept her at the house of a relative for 4-5 days, where she was
subjected to repeated rape under drugs. Following a commotion
(hulla), the police rescued her and brought her before the
Magistrate, where her statement was recorded. She was also
medically examined and later returned to her parental home.
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
11/27
11.i. In her cross-examination, she initially stated
the incident occurred on a Sunday but later corrected herself,
saying it was a Saturday. She again stated that the day of
occurrence was Sunday but it was not in her mind so, she went
to school to collect her admit card but returned on finding the
school to be closed but she did not noticed whether the
watchman was present there or not and she also did not meet
anyone on the way to her school. She denied having any prior
relationship or interaction with the accused. She further stated
that before the day of alleged occurrence she used to seen Pappu
Tanti at her uncle’s shop in the market. She stated that she had
not communicated with the accused/appellant prior to the
alleged occurrence. She also stated that there was never any
love affairs and exchange of love letters either 8 complete or 3
incomplete letters between her and accused. The defence
confronted her with several letters (Exhibits X to X/10)
purportedly written by her, and a photograph (Exhibit X/11)
allegedly showing her with the accused. She denied the
handwriting and signatures on the letters and asserted that
although the photograph contained her image, she had never
posed for a photograph with the accused. She rejected the
suggestion that the letters or the photograph were genuine or
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
12/27
indicative of a consensual relationship.
11.ii. She further stated that she was intoxicated
so she cannot state when she reached Bhagalpur station after
leaving Ghogha. She stated that when she regained
consciousness at about 2:00 PM and she was on the train and
Pappu Tanti was with her but she cannot mention which train it
was. She reached Danapur at around 6-7 PM. In Danapur, she
was kept in a dark room and subjected to repeated rape by the
accused, who allegedly bit her private parts with his nails. She
did not resist due to physical weakness. She stated there were 6-
7 rooms in the Danapur house but no other occupants. After 4-5
days, she was taken to Bhagalpur by train and reached around 6-
7 am. She then traveled by bus to Jagdishpur with the accused.
The road to Jagdishpur was busy and commercial in nature. She
was kept in a house near the road for 6-7 days, where 10-15
people were residing. The accused continued to sexually assault
her during this period. She was taken to Court once during this
stay. Eventually, after a hulla was raised, police arrived and
recovered her. Her statement was recorded before the Magistrate
and her medical examination was conducted on the same day.
12. PW-7 in his examination-in-chief stated that
the fardbeyan in the present case is in the handwriting and bears
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
13/27
the signature of P. Kant, Sub-Inspector, Ghogha Police Station,
and he identified the document, which was marked as Exhibit-3.
He further stated that the formal F.I.R. was prepared based on
the fardbeyan and is in the handwriting and under the signature
of A.S.I. Satyanand Singh, which he also recognized and was
marked as Exhibit-4. He further stated that he identified the
statement of Poonam Kumari under Section 164 Cr.P.C.,
recorded by Judicial Magistrate, Bhagalpur, as being in the
Magistrate’s handwriting and under his signature, which was
marked as Exhibit-5.
12.i. In his cross-examination, he stated that he
had not worked directly with any of the aforementioned officers
and that the documents identified by him were not written in his
presence. He also stated that he did not know the contents of the
documents. He did not recall the exact duration of service of
those officers at Ghogha Police Station.
13. After closure of the prosecution evidence, the
appellant was examined under Section 313 of the Cr.P.C where
they claimed that the prosecution evidence is false and they are
innocent and have been falsely implicated in the present case.
14. DW-1 in his examination-in-chief, stated that
he is familiar with the persons mentioned in the affidavit,
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
14/27
specifically identifying Paplesh Kumar @ Pappu and Poonam
Kumari. He further stated that he knew Poonam Kumari, he
used to teach tuition to Poonam Kumari in the year 1998. He
further stated that he was acquainted with the handwriting of
Poonam Kumari and all the letters were written by Poonam
Kumari and identified all those letters in Court, which were
marked as Exhibit-2 to Exhibit-10. He further stated that he
identified the signature of Poonam Kumari on Vakalatnama,
which he marked as Exhibit-V. He also recognized the signature
of Paplesh Kumar on the affidavit, marked as Exhibit-C. He also
identified the signature of Poonam Kumari on a second
affidavit, which he marked as Exhibit-11. He further stated that
in the year 1968, Poonam Kumari was aged about 19 years. He
also stated that Pappu is present in the court and he is able to
recognize him.
14.i. In his cross-examination he stated that he
was brought to testify in Court by accused Pappu Kumar and his
statement was not recorded before police. He further stated that
he had been teaching tuition to children from 1967 to 2004,
primarily to students of classes 4 and 5, though he later clarified
that he also taught up to class 8. He stated that he cannot recall
the names of all the children he taught over the years. He further
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
15/27
stated that he is able to identify the children he taught by
examining their handwriting. He clarified that the age of
Poonam Kumari, as mentioned by him, was provided as an
estimate.
15. DW- 2 in his examination-in-chief stated that
the Vakalatnama filed in the name of Advocate Shailendra
Bihari Sharan bears the signature of the said advocate. He has
verified the handwriting and signature of Advocate Shailendra
Bihari Sharan and marked as Exhibit-D. He further stated that
an application dated 14.02.1999 was typed by Ashok Chandra
Das, typist. The application bears the initials of Shri Shailendra
Bihari Sharan, which the witness recognized and marked as
Exhibit-E. He further stated that he cannot tell the age of
Advocate Shailendra Bihari Sharan as mentioned in the
Vakalatnama.
16. Learned counsel for the appellant submits
that the impugned judgement of conviction and order of
sentence are not sustainable in the eye of law or on facts.
Learned trial Court has not applied its judicial mind and
erroneously passed the judgement of conviction and order of
sentence and from perusal of the evidences adduced on behalf of
the prosecution it is crystal clear that the prosecution’s case is
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
16/27
false and fabricated.
16.i. He further submitted that Section 366-A of
the IPC is not applicable in the present case because the victim
(PW-6) was not minor at the time of occurrence. He submitted
that to prove the allegation of Section 366-A of the IPC victim
should be minor and forced or seduced to illicit intercourse. In
the present case there is no proof of forcible intercourse or
seduce to illicit intercourse which are appearing in the
deposition of PW-6. He further submitted regarding the prove of
age of the victim that no Medical Board was constituted for
determining her age. Mere statement about age cannot be the
ground of conviction under Section 366-A of the IPC.
16.ii. He further submitted that the appellant has
filed Matric pass certificate dated 30.09.1999 issued by Bihar
School Examination Board, Patna in I.A. No. 794 of 2009 in
this appeal as Annexure-1 in which the date of birth of PW-6
mentioned 15.01.1980 as such the PW-6 was not under age on
the date of occurrence. It is pointed out that this certificate was
not available to this appellant during trial hence it may be
considered in the interest of Justice. He further submitted that
there is contradiction about the age of PW-6 (Victim) from the
age given in the First Information Report (Ext. 4) and Report of
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
17/27
PW-5(Doctor) i.e. Ext. 2
16.iii. He further submitted that the prosecution
has not proved the case beyond reasonable doubts under Section
366(A) of the IPC and the appellant was fit to be acquitted
under the charge of Section 366(A) of the said code. Section
376 of the IPC is not applicable because no rape has been
committed with the PW-6 (Victim) against her will or otherwise.
On considering oral evidence of PW-6 (Victim) and PW- 5
(Doctor) are important which has not been considered by
learned Trial Court while discussing this important point. Ext. 5
(Doctor’s Report) was not considered to ascertain the rape with
PW-6 because the PW-6 has narrated her activities and situation
of consent with appellant from the village to Danapur and
Danapur to Jagdishpur and, therefore, the Doctor found no
positive sign of rape. Ext. A to A/10 are the love letters of PW-6
sent to this appellant which has not been considered while
convicting him under Section 376 of the IPC.
16.iv. He further submitted that Hon’ble
Jharkhand High Court has set aside the conviction and sentence
order of accused under Section 366-A, 376 and 511 of Indian
Penal Code on the ground that the victim had opportunity to
raise alarm at various public places but she did not do so in the
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
18/27
case of Mohd. Sazid Versus The State of Jharkhand reported in
2024 SCC online (Jhar) Page 1341. In the present case also
PW-6 (Victim) did not raise alarm from Village to Danapur and
from Danapur to Jagdishpur during train Journey and bus
Journey. Learned counsel for the appellant lastly contended that
in view of the aforesaid facts and circumstances, the prosecution
has failed to prove beyond shadow of all reasonable doubts as
other prosecution witnesses i.e. PW-1 to PW-4 and PW-7 have
also not supported the prosecution case. Hence, the prosecution
case against the appellant fails on this ground alone. So, the
appellant should have been acquitted from the conviction as
sentenced against him.
17. However, learned APP for the State defends
the impugned judgment of conviction and the order of sentence
submitting that there is no illegality or infirmity in the impugned
judgment and order of sentence, because prosecution has proved
its case against the appellant. In view of the aforesaid statements
and the evidence on record, learned trial Court has rightly
convicted the appellant and the present appeal should not be
entertained.
18. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution before
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
19/27
the Trial Court. I have thoroughly perused the materials on
record and as well as given thoughtful consideration to the
submissions advanced by both the parties.
19. On deeply studied and scrutinized all
evidences, it is evident to note that there are serious
inconsistency in the deposition of prosecution witnesses as PW-
2 in his deposition stated at first instant that he also went to
police station and recorded his statement but later on he stated
that he did not go to police station on the day of occurrence and
his statement was not recorded by police. In deposition of PW-3
inconsistency appears as firstly she denied that Poonam was
previously acquainted with Pappu Tanti. However, in
subsequent line she stated that Poonam used to visit the shop of
Pappu Tanti along with Kamleshwari Das. Moreover, she also
stated in her deposition that on the day of occurrence she did not
go out to search for Poonam in contrary to her own statement
further she stated that she had gone to the house of Pappu Tanti
in search of her daughter.
20. Further, PW-5 (Doctor) in her deposition
stated that there was no positive finding of rape and it was
difficult to ascertain whether rape was committed or not. PW-6
in her deposition initially stated the incident occurred on a
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
20/27
Sunday but later corrected herself, saying it was a Saturday. She
again stated that the day of occurrence was Sunday but it was
not in her mind so, she went to school to collect her admit card
but returned on finding the school to be closed. PW-6 (victim)
stated in her deposition that she was given drugs and not in her
consciousness throughout journey from Bhagalpur to Danapur
and Danapur to Jasdishpur but instead of being in state of
unconsciousness she has given minute details of the journey and
also had lunch while traveling. She stated in her deposition that
there were other passengers also present in the train so, she has
opportunity to raise the alarm and seeks help from the public but
she did not which shows that she voluntarily accompanied
appellant and went with her own consent. She also stated that
there was never any love affairs and exchange of love letters
between her and accused. But the letter was in her handwriting
which is confirmed by DW-1 who is well acquainted with her
handwriting as he was his tuition teacher and saw her while
writing.
21. It is well settled principle of criminal justice
system that the prosecution has to established its case beyond
shadow of all reasonable doubts but the defense has to only
create the suspicion. Moreover, after perusing the entire letters
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
21/27
ext. A series, it is evident that the letters of this form which is
full of love and emotions can not be manipulated and are
genuinely written by the victim herself. Further, it shows that
the letters which were exhibited by the defence were written by
the victim and the contents of the letters also corroborate with
the fact that there was love and affection between victim and
appellant. So, the acts done by both victim and appellant was
consensual.
22. So, he can be considered as expert as far as
opinion as to handwriting is concerned, according to Section 47
of Indian Evidence Act, 1872. The Section specifically allows
the Court to consider the opinion of a person who is familiar
with the handwriting of the individual who is believed to have
written or signed the document in question. A person is
considered acquainted with another’s handwriting if they have:
(i). Seen the person write.
(ii). Received documents that appear to be
written by that person in response to their
own writings or under their authority.
(iii). Habitually received documents
purporting to be written by that person in
the ordinary course of business.
23. Section 47 of Indian Evidence Act reads as
follow:-
47. “Opinion as to handwriting, when
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
22/27relevant. When the Court has to form an
opinion as to the person by whom any
document was written or signed, the
opinion of any person acquainted with the
handwriting of the person by whom it is
supposed to be written or signed that it was
or was not written or signed by that person,
is a relevant fact.
Explanation- A person is said to be
acquainted with the handwriting of another
person when he has seen that person write,
or when he had received documents
purporting to be written by that person in
answer to documents written by himself or
under his authority and addressed to that
person, or when, in the ordinary course of
business, documents purporting to be
written by that person have been habitually
submitted to him”.
24. Moreover, as far as age of the victim is
concerned it is evident from the transfer certificate which is
exhibited in the record that her age is 19 years at the time of
alleged occurrence. So, it is crystal clear that she is not minor at
the time of alleged occurrence and letters in her handwriting
shows that she was in love and affair with the appellant and
accompanied him with her own consent. Further it is also
evident that the essential element of Section 366A and 376 of
the IPC has not fulfilled in the present case.
25. The Investigating Officer has not been
examined during the course of trial and non-examination of
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
23/27
Investigating Officer is fatal to the case of the prosecution. The
Supreme Court in Habeeb Mohammad vs The State of
Hyderabad 1954 AIR 51, 1954 SCR 475 pointed out that-
“It was the duty of the prosecution to
examine all material witnesses who could
give an account of the narrative of the
events on which the prosecution is
essentially based and that the question
depended on the circumstances of each
case. In our opinion, the appellant was
considerably prejudiced by the omission on
the part of the prosecution to examine
Biabani and the other officers in the
circumstances of this case and his
conviction merely based on the testimony of
the police jamedar, in the absence of
Biabani and other witnesses admittedly
present on the scene, cannot be said to have
been arrived at after a fair trial,
particularly when no satisfactory
explanation has been given or even
attempted for this omission. A police
Jamedar in the absence of Biabani and
other witnesses admittedly present on the
scene, cannot be said to have been arrived
at after a fair trial, particularly when no
satisfactory explanation has been given or
even attempted for this omission.”
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
24/27
26. The Hon’ble Apex Court in the case of
Munna Lal Vs. State of Uttar Pradesh, reported in 2023 SCC
OnLine SC 80 whose relevant paragraph Nos.- 28 and 39 of the
said judgment are reproduced here-in-below:
“28. Before embarking on the exercise of
deciding the fate of these appellants, it
would be apt to take note of certain
principles relevant for a decision on these
two appeals. Needless to observe, such
principles have evolved over the years and
crystallized into ‘settled principles of
law.’These are:
(a)………
(b)………
(c). A defective investigation is not always
fatal to the prosecution where ocular
testimony is found credible and cogent.
While in such a case the court has to be
circumspect in evaluating the evidence, a
faulty investigation cannot in all cases be a
determinative factor to throw out a credible
prosecution version.
(d). Non-examination of the Investigating
Officer must result in prejudice to the
accused; if no prejudice is caused, mere
non-examination would not render the
prosecution case fatal.
(e)………
“39. Secondly, though PW-4 is said to have
reached the place of occurrence at 1.30
p.m. on 5th September, 1985 and recovered
a bullet in the blood oozing out from the
injury at the hip of the dead body, no effort
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
25/27worthy of consideration appears to have
been made to seize the weapons by which
the murderous attack was launched. It is
true that mere failure/neglect to effect
seizure of the weapon(s) cannot be the sole
reason for discarding the prosecution case
but the same assumes importance on the
face of the oral testimony of the so-called
eye- witnesses, i.e., PW-2 and PW-3, not
being found by this Court to be wholly
reliable. The missing links could have been
provided by the Investigating Officer who,
again, did not enter the witness box.
Whether or not non-examination of a
witness has caused prejudice to the defence
is essentially a question of fact and an
inference is required to be drawn having
regard to the facts and circumstances
obtaining in each case. The reason why the
Investigating Officer could not depose as a
witness, as told by PW-4, is that he had
been sent for training. It was not shown that
the Investigating Officer under no
circumstances could have left the course for
recording of his deposition in the trial
court. It is worthy of being noted that
neither the trial court nor the High Court
considered the issue of non-examination of
the Investigating Officer. In the facts of the
present case, particularly conspicuous gaps
in the prosecution case and the evidence of
PW-2 and PW-3 not being wholly reliable,
this Court holds the present case as one
where examination of the Investigating
Officer was vital since he could have
adduced the expected evidence His non-
examination creates a material lacuna in
the effort of the prosecution to nail the
appellants, thereby creating reasonable
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
26/27doubt in the prosecution case.”
27. Further, Investigating Officer has also not
been examined during the course of trial as it was fatal since he
could have adduced the expected evidence and his non-
examination creates a material lacuna in the effort of the
prosecution to nail the appellant, thereby creating reasonable
doubt in the prosecution case and the learned trial Court failed
to scrutinize the evidence brought on record regarding
deficiencies, drawbacks and infirmities crept during course of
trial and passed the impugned judgment in complete ignorance
of criminal jurisprudence.
28. Hence, the judgment and order of conviction
dated 14.07.2008 and 18.07.2008 respectively passed by the
learned Sessions Judge, Bhagalpur in Sessions Trial No. 742 of
1999, G.R. Case No. 243 of 1999 arising out of Kahalgaon
(Ghogha) P.S. Case No. 34 of 1999 is set aside and the
accused/appellant is acquitted from the charges leveled against
him. As the appellant is on bail, he is discharged from liability
of his bail bond.
29. Accordingly, this appeal stands allowed.
30. Office is directed to send back the trial Court
records and proceedings along with a copy of this judgment to
Patna High Court CR. APP (SJ) No.756 of 2008 dt.16-07-2025
27/27
the trial Court, forthwith, for necessary compliance, if any.
(Ramesh Chand Malviya, J)
Anand Kr.
AFR/NAFR AFR CAV DATE 01.07.2025 Uploading Date 16.07.2025 Transmission Date 16.07.2025
[ad_2]
Source link